Burley v. Michigan Department of Corrections et al

Filing 99

ORDER accepting 76 Report and Recommendation, granting in part and denying in part 58 Motion to amend, granting in part and denying in part 65 Motion for summary judgment, and granting 95 Motion directing service on defendant Guilkie. Signed by District Judge George Caram Steeh. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWARD BURLEY #502426,
Plaintiff,
Case No. 16-CV-10712
vs.
HON. GEORGE CARAM STEEH
MICHIGAN DEPARTMENT
OF CORRECTIONS, ET AL.,
Defendants.
_____________________________/
ORDER ACCEPTING REPORT AND RECOMMENDATION [DOC. 76]
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO AMEND [DOC. 58] GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [DOC. 65] AND GRANTING PLAINTIFF’S
MOTION DIRECTING SERVICE ON DEFENDANT GUILKIE [DOC. 95]
Plaintiff Edward Burley alleges that he suffers from hearing
impairment and that defendants have failed to provide him with
accommodations for his disability. Plaintiff seeks access to
interpreters, videophones, amplifiers, hearing aids and other audioaudio-visual equipment which would permit him to more fully
participate in academic classes, training, medical care, disciplinary
hearings, religious ceremonies, and family visits. Plaintiff further
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asserts that the lack of such accommodations have placed him at risk
in case of an emergency, whereby warnings are conveyed using audio
cues. Burley alleges that defendants have denied him his rights
under the First and Fourteenth Amendments and have violated the
Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.
Burley seeks monetary damages in the amount of $100 per day
that his rights have been violated, and $1,000,000 in punitive
damages. He seeks an injunction requiring defendants to provide
adequate services and facilities for deaf inmates. He also seeks a
declaration that defendants violated various statutes and
Constitutional provisions and an award of attorney’s fees.
Burley filed his complaint against the Michigan Department of
Corrections (“MDOC”), Daniel Heyns, Heidi Washington, Thomas
Finco, Joanne Bridgford, Blaine Lafler, Willie Smith, Cathleen
Stoddard, John Prelesnik, Patrick Trieweiler, Thomas Birkett, Randall
Haas, Jeffrey Woods, Michelle Pelon, Jacque Koenigskencht, George
Stephenson, Joseph Knickerbocker, Russell Klatt, James
Verbonconer, Stephen Moore, and Jane and John Doe (“state

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defendants”), and defendants Sherry, Roger Gerlack, and Scott
Holmes (‘the non-state defendants”).
The non-state defendants, along with the named but unserved
defendants, Quiroga and Williamson, have not filed a dispositive
motion and have not joined in the state defendants’ motion for
summary judgment.
This matter is presently before the court on Magistrate Judge
Morris= report and recommendation addressing plaintiff’s motion to
amend and the state defendants’ motion for summary judgment.
Objections to the report and recommendation have been filed within
the established time period. The court has reviewed the file, record,
and magistrate judge's report and recommendation.
I. Motion to Amend [Doc. # 58]
On June 30, 2016, Burley filed a proposed amended complaint
seeking to add allegations against Assistant Resident Unit Supervisor
(“ARUS”) Yall, Edward Hunt, Warden Thomas Birkett, Resident Unit
Manager (“RUM”) Guilkie, ARUS Snyder, Special Accommodation
Coordinator Foy, Dr. Czop, Rhonda Rider, ARUS Daniels, ARUS
Bradley, and Holtz for violating his rights by denying him certain
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accommodations. The Magistrate Judge concludes that plaintiff
failed to exhaust his grievances through the administrative grievance
process as to all of the defendants he seeks to add in his motion to
amend, except for defendant Guilkie. Therefore, the Magistrate Judge
Judge recommends that Burley’s motion to amend should be denied
as futile as to all proposed defendants except for Guilkie.
The exhaustion issue is also relevant to defendant’s motion for
summary judgment and is discussed in more detail below.
II. Motion for Summary Judgment [Doc. #65]
On August 5, 2016, the state defendants filed a motion for
summary judgment. The Magistrate Judge recommends that the
motion be granted as to most of the state defendants and denied as to
defendants Klatt and Guilkie.
A. Grievance Exhaustion
Burley’s complaint can state a viable claim if he properly
exhausted the relevant grievance within the last three years.
Grievances are defendant-specific and issue-specific. The Magistrate
Magistrate Judge determined that Burley properly exhausted a total of
six hearing-impairment related grievances through step III of the
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grievance process that are ripe for determination. Of those six
grievances, only three reference any defendant discussed in Burley’s
complaint or amended complaint. Grievance 0059-07a references
defendant Klatt; grievance 0108-12i references defendant Holmes and
the MDOC; and grievance 3775-23z references defendants Stoddard
and Guilkie. Defendants MDOC, Klatt, Stoddard and Holmes were
each mentioned in Burley’s original complaint. Defendant Guilkie is
mentioned only in Burley’s amended complaint.
1. Klatt
The state defendants acknowledge that Burley’s claims against
defendant Klatt have been properly exhausted by way of grievance
0059-07a, and they do not move for summary judgment on this claim.
2. Stoddard and Guilkie
Grievance 3775-23z, at step I alleges that state defendant Guilkie
failed to provide Burley with a telecommunications device for the deaf
(“TDD”) in a timely manner. Step I does not mention defendant
Stoddard. In step II, Burley asserts that the TDD phone that the Ionia
Correctional Facility (“ICF”) acquired “is useless without the
programming of the regular phone. ICF has a new TDD phone, but no
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no access to the Relay Center (who transcribes the sender’s
messages). This service has been denied [to] me in violation of
policy and the [ADA].” At step III, a grievance specialist found that
Burley’s concerns were adequately addressed at steps I and II, and
thus merited no further response.
Stoddard is not the subject of grievance 3775-23z, so Burley did
not exhaust any claims against Stoddard. Therefore, Burley has no
viable exhausted claim against defendant Stoddard.
Burley’s proposed amendment states that Guilkie was involved
with emergency alarms. However, grievance 3775-23z is not related
to emergency alarms and only deals with whether the ICF prison had
proper TDD facilities. Only exhausted claims can be brought. The
Magistrate Judge found that Burley’s proposed claim relates generally
to the failure to provide “reasonable accommodations for [his]
hearing disability,” which fairly implicates the use of TDD. Therefore,
she recommends that Burley’s motion to amend be granted insofar as
he claims that Guilkie denied his request for TDD facilities in violation
of Burley’s rights.

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3. MDOC and Holmes
MDOC is not mentioned at step I of grievance 0108-12i. Because
grievances are defendant-specific and issue-specific, they properly
exhaust claims regarding a particular defendant insofar as the
prisoner names that defendant and describes the specific conduct at
each of the three grievance steps. Defendant named MDOC only at
step II of the grievance process and therefore failed to properly
exhaust this claim against MDOC. The Magistrate Judge therefore
recommends that the claims against MDOC should be dismissed.
Defendant Holmes is a non-state defendant and has not moved
to join in the state-defendants’ motion for summary judgment.
4. Defendants’ Objection
Defendants object to allowing Burley to amend his complaint to
add Guilkie as a defendant because doing so would result in improper
joinder. Federal Rule of Civil Procedure 20 allows defendants to be
joined in a single action for claims “arising out of the same
transaction, occurrence, or series of transactions or occurrences”
and where “any question of law or fact common to all defendants will

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arise in the action.” The remedy for misjoinder is to drop misjoined
parties and/or to sever claims. Fed. R. Civ. P. 22.
Defendants point out that defendant Klatt is alleged to have
failed to afford Burley an interpreter at a misconduct hearing and
Guilkie is alleged to have failed to accommodate a request for a TDD
hearing impaired phone. These two incidents occurred a year apart at
two different facilities. Because the claims are distinct, the defendants
are distinct and the facilities are distinct, defendants argue that the
proper course is to allow the claim against defendant Klatt to proceed
and to reject the addition of the claim against Guilkie.
Burley filed his lawsuit to attack the sufficiency of and
adherence to the MDOC policies that provide accommodations for a
prisoner who suffers from hearing impairment. While he did not
exhaust his claims against MDOC itself, he did exhaust his claims
involving Klatt and Guilkie. All of plaintiff’s claims in this case
involve accommodating his disability while he is in state custody.
While the two exhausted claims at issue do not arise out of the same
incident, they are related in that they both involve an alleged violation
of plaintiff’s right to accommodations for his disability while he is in
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custody. The court overrules defendants’ objection and will permit
Burley to amend his complaint to add Guilkie as a defendant.
B.

ADA and Rehabilitation Act

The Magistrate Judge analyzed the elements required to state a
cause of action under the ADA and Rehabilitation Act (“RA”) and
found there is a question of material fact regarding whether Burley
suffers from a hearing impairment which constitutes a disability
under the ADA and RA. She also found an issue of fact whether
Burley was otherwise qualified to participate in prison programs and
activities. The Magistrate Judge recommends that the remaining
state defendants, Klatt and Guilkie, are not entitled to summary
judgment on these claims.
The court agrees with the Magistrate Judge’s analysis on this
issue, to which no objections have been filed.
C. Eleventh Amendment Immunity
The Magistrate Judge addressed the state defendants’ argument
that Burley’s claims under the ADA and RA are barred by the doctrine
of sovereign immunity, and found that they are not barred. The court

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agrees with the Magistrate Judge’s recommendation, to which no
objections have been filed.
D. Qualified Immunity
The Magistrate Judge considered whether denying Burley an
interpreter during a misconduct hearing, and denying him reasonable
access to prison telephones, were clearly established constitutional
violations such that a reasonable officer would have known they were
constitutional violations. Applying Sixth Circuit law, she concluded
that a reasonable officer would have known that prisoners were
entitled to attend and participate in their own misconduct hearings,
and were also entitled to reasonable access to telephones, and that
denial of the same would constitute violations of the Fourteenth
Amendment.
The court agrees with the Magistrate Judge’s recommendation
that Burley’s claims against Klatt and Guilkie involve clearly
established rights and that qualified immunity does not bar either of
Burley’s claims. There are no objections to this recommendation.

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E. Plaintiff’s Objections
Plaintiff objects to the report and recommendation on the
ground that the Magistrate Judge did not address his argument that it
was an MDOC custom and practice to discriminate against hearing
impaired prisoners. Plaintiff argues the court should not enforce the
exhaustion requirement where defendants do not enforce their own
rules. Plaintiff also objects that the Magistrate Judge did not consider
consider his challenge to the “reporting practices of Lansing
concerning step III grievances he submitted.” In fact, the Magistrate
Judge did address these arguments in her report and
recommendation at pages 11 and 12 where she acknowledges that the
court will not find a grievance procedurally defaulted where a prisoner
fails to name an individual in his initial grievance but the MDOC
responds to the grievance on its merits anyway. In this case, the
Magistrate Judge concluded that Burley did not exhaust his
grievances by merely bringing them to the attention of the MDOC. A
prisoner must receive a merits-based decision at each step of the
grievance process in order to exhaust the grievance. Procedural
default is not an issue in this case. The court agrees with the
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Magistrate Judge’s analysis of this issue and overrules plaintiff’s
objections.
CONCLUSION
The Court hereby accepts the Magistrate Judge’s report and
recommendation granting in part and denying in part plaintiff’s
motion to amend and granting in part and denying in part defendants’
motion for summary judgment.
Plaintiff’s motion to amend is granted only as to add defendant
Guilkie.
Summary judgment is granted only as to defendants MDOC,
Heyns, Washington, Finco, Bridgford, Lafler, Smith, Stoddard,
Prelesnik, Trieweiler, Birkett, Haas, Woods, Pelon, Koenigskencht,
Stephenson, Knickerbocker, Verbonconer, Moore, and the John and
Jane Doe defendants. Summary judgment is denied as to defendants
Klatt and Guilkie.
It is so ordered.
Dated: March 6, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of
record on March 6, 2017, by electronic and/or
ordinary mail and also on Edward Burley #502426,
Carson City Correctional Facility,
10274 Boyer Rd. Carson City, MI 48811.
s/Barbara Radke
Deputy Clerk

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